The Age Of Electronic Government

APF Fellow

Bulletin issued in 1987 within the U.S. Department of Defense. Courtesy U.S. Air Force

Bulletin issued to U.S. military personnel in 1988. Courtesy U.S. Air Force

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It began as a routine Freedom of Information Act request but ended in a tangle, a computerized Catch-22.

In 1985, the non-profit organization, Public Citizen, requested that Occupational Safety and Health Administration (OSHA) provide an array of records detailing workplace hazards.

The Washington-based public interest group routinely monitors compliance with workplace safety rules to see if OSHA is enforcing laws that protect employees.

The regional OSHA office approached by Public Citizen told the group that searching paper documents to fulfill the request would be time-consuming and expensive, but that OSHA's central office was increasingly computerized to overcome just this type of problem.

"They told us that in order to produce what we wanted they would have to go through every file by company name, to look for certain violations, but their computer (in Washington) recorded it by violations," said Patti Goldman, a Public Citizen attorney. "They had the paper records but they said it was far too cumbersome to look through them."

The group's next stop was the OSHA Office of Management Data Systems, which informed Public Citizen that the requested information was indeed stored in its database. But there was a catch. To compile and print the information required computer programming. That programming, according to OSHA interpretation of the Freedom of Information Act, wasn't compiling existing documents but creating a new record, an action not required by the law. Therefore, the office said the information was exempt from disclosure.

OSHA could, of course, at its own discretion, release the information anyway. However, it would take this action only after Public Citizen paid what could be substantial search and reproduction fees. After all, if the information was not covered by the Freedom of Information Act (FOIA), then the act's fee waiver provisions also didn't apply.

"If it's not covered by FOIA then you don't get your fee waivers, but that's only the symptom," Goldman said. "The problem is that if it's not covered by FOIA then the public has no right to it."

In The Beginning…

In 1955, when the House of Representatives concluded government secrecy was a significant problem and put California Congressman John Moss in charge of the newly established Special Subcommittee on Government Information, the federal government owned 45 computers.

By today's standards, these mainframe units were slow, inefficient and bulky. Personal computers existed only in science fiction magazines. The federal government stored information much the way it had when Benjamin Franklin ran his printing press -on paper.

By the time Moss succeeded in convincing Congress to enact the Freedom of Information Act in 1966, the number of federal computers had grown to about 3,000, still a relatively small total in an expanding Great Society government employing millions. Paper documents remained the overwhelming format of choice for records.

Not surprisingly, the hearings by the subcommittee that led to passage of FOIA contain few references to computers, and the 1966 law speaks of paper records not computerized databases. The important 1974 amendments to FOIA did little to change the situation. Computers are mentioned only in the Senate report on those amendments, which says a computer search for information "would include services 'functionally analogous' to searches for records maintained in conventional form."

Computers And Federal Records

But the computers largely ignored by FOIA, which remains the country’s primary federal records access law, have increasingly made their presence felt. In recent reports, the Office of Technology Assessment estimates that by 1990 the federal government will be using some 1 million computers. One implication of this proliferation is increasingly clear: the new world of electronic government is upon us, creating enormous potential for distribution and concealment of federal information.

Consider a few signs heralding the arrival of computerized government, signs discussed in recent reports by OTA, Congress, the Administrative Conference of the United States, the American Civil Liberties Union, and others.

In 1986 the federal government spent more than $15 billion for computers and electronic data systems.

More than 400 federal databases already provide public information.

Civilian federal publications available in electronic format have more than tripled since 1984.

Plans to computerize the Congressional Record and other major federal publications are underway. A year of the Record could be placed on a single compact disk, which could be read on any personal computer. Nationwide computerized distribution of the massive resources of the Library of Congress may not be far behind. In 1987 congressional hearings, Library Of Congress Librarian James Billington predicted that with new computer technologies, "we might aspire to share by the year 2000 much of the substantive content and not merely the descriptive catalog of this remarkable national collection with citizens and students directly in their local communities."

In 1984, the Securities and Exchange Commission began pilot operation of the EDGAR system. Before EDGAR (Electronic Data Gathering, Analysis and Retrieval), publicly owned companies flooded the SEC with some 7 million pages a year of reports and documents. While the number of filings has continued to increase, companies can now file that data electronically over a telephone modem, or by mailing the SEC magnetic tape or computer disks. During the pilot phase of the program, ending in 1990, the public can request paper copies of SEC reports or dial up electronically stored data on computer terminals in the SEC’s New York, Washington and Chicago offices. SEC records also will be released electronically to home and business computers through a number of state securities agencies.

More than 30,000 American commercial enterprises are required to provide the Environmental Protection Agency (EPA) with a list showing which of more than 300 toxic substances they use or store in more than threshold amounts. Hazardous chemical emissions must also be reported. The law requires that this information, known as the Toxic Release Inventory, be distributed "by computer telecommunications and other means to any person on a cost reimbursable basis."

The database is scheduled to begin operation this year, said EPA official Mike Shapiro. Initially, it will allow requesters anywhere in the country to dial up EPA’s raw data on any personal computer. Ultimately, the system will provide analysis of data as well. Requesters will be able to ask for amounts of certain pollutants released by particular companies within specified areas and receive that information, Shapiro said.

"It will establish a number of precedents for public access to information, not just in the EPA but throughout the government, we think," said Shapiro. "It’s very exciting. We think we’re the future of electronic access."

Results So Far

The new technologies promise quicker and more thorough access to government information. For journalists especially this promise has already been translated into a number of significant news stories. Just a few examples:

In 1972, Ralph Nader’s Congress Watch project compiled a list of stocks owned by congressmen and congressional candidates. Securities and Exchange Commission forms identified persons who owned at least 10 percent of a listed corporation. But the forms were filed under the company’s name, not that of the individual. Before computers, the information would have been scattered through 10,000 separate paper files. In 1972, however, SEC computers searched agency databanks for individual names and produced the list.

In 1973, the Philadelphia Inquirer used computers to analyze what previously had been considered an overwhelming amount of data on the city’s criminal justice system. Computers allowed reporters to track and analyze more than 1,300 individual criminal cases, selected at random. The sampling produced an award-winning series on crime and punishment in Philadelphia.

In 1981, the Bureau of Alcohol, Tobacco and Firearms released a computer tape to the Cox Newspapers’ Washington Bureau containing descriptions of 14,268 handguns used in the commission of crimes. Analysis of the tape revealed that cheap "Saturday Night Specials" were not the handguns most often used in street crimes. Analysis also indicated easily concealed snub-nosed handguns were often used to commit crimes and that controlling these handguns might reduce crime.

In 1988, the Atlanta Constitution used extensive computer analysis of federal and state banking records, detailing more than 100,000 loans, to demonstrate that blacks were significantly less likely to receive home loans than whites in comparable income brackets.

Computers And Foia

The arrival of the government computer presents several problems for the Freedom of Information Act. It also has implications for government policies on secrecy and disclosure. These include defining how electronic technology will be applied to a law written for paper documents, determining who will cast these new definitions and set the government’s new information policies, and deciding who will pay for these changes.

One traditional limit on FOIA requests has been court rulings insisting that document searches in response to these requests be reasonable and unlikely to significantly hamper an agency's day-to-day operations.

"One of the big problems with FOIA is trying to make your way through massive warehouses full of paper. There's a substantial cost associated with doing that, which is a burden ultimately on the taxpayer and on the general public," said Jamie Grodsky, an Office of Technology Assessment official who assisted in writing the agency's 1988 report, "Informing the Nation: Federal Information Dissemination in an Electronic Age."

In the past, some FOIA requesters have suspected agencies of using this explanation as an excuse for deliberate stalling. "It could be a convenient way to explain why it takes six months or a year to get anything," Grodsky said. "Well, now we have the situation where increasingly the information is in electronic format. It should be a lot easier to search out the records and to identify what is desired and get it out."

The OTA report is one of several published recently by private and public organizations suggesting the definition of a "reasonable search" under the FOIA needs expansion. Computerization implies that a search conducted in response to a FOIA request will now he easier. An easier search should also be wider and more complex. Entering a name or a phrase will allow a computer to search a number of databases for responsive information.

More documents will be searched more thoroughly and more rapidly than was possible when information was stored on paper. It is even possible, Grodsky said, that FOIA requests denied as unreasonable 20 years ago because of the effort then required to find and examine paper records, might today be refiled and granted.

Yet another aspect of this broadened search deals with the case of editing and destroying electronic information. No legislation requires that early drafts, or even final drafts, of many electronic documents be saved, notes Harold Relyea, a Congressional Research Service expert on FOIA and secrecy. Documents are edited, altered or erased entirely with the touch of a button. Unless agencies are required to save all electronic documents, an FOIA search may turn up merely a final, edited copy of a report, or no report at all, he warns.

New Technology–New Definitions

Definitions from a paper era may not uniformly fit the electronic age. Court rulings that agencies were not required to create new documents in response to FOIA requests were somewhat understandable when requests were for paper reports. Either an agency had a report or it didn’t.

But today information may be stored not as a paper record, or even as a "record," but as electronic bits in a computer data base. In the computer age, what is a record? What constitutes creation of a new record, an action the courts say is not required under FOIA?

Public Citizen wasn't alone in facing this question. In 1987, Quinlan J. Shea, Jr., special counsel for the National Security Archive, requested under FOIA a list of the limited distribution scientific reports collected or prepared by the Department of Energy's Office of Scientific and Technical Information (OSTI), in Oak Ridge, Tenn.

The unclassified reports covered newsworthy subjects including the extent of soil contamination at the Oak Ridge nuclear facility. For years this information had been concealed from most of the public. OSTI had limited the documents to a few trusted DOE contractors.

When contacted by the Archive, a private, non-profit organization operating as a clearinghouse and distributor of previously classified government documents, Oak Ridge officials immediately said they wouldn't release the list. DOE admitted the information was unclassified and was in their computers. But creating such a list would require manipulation of the computerized data-programming OSTI insisted was creation of a new document and thus not required under the freedom of information act.

Shea, who as a former director of the Justice Department's Office of Privacy and Information Appeals possesses extensive knowledge of FOIA, challenged that ruling.

"I told them that if the list I wanted was on paper, then they wouldn't send me that one list. They would put it in the Xerox and push the print button. Well, pushing the print button on a computer is no more creation of a record than pushing the copy machine print button," Shea said.

Energy Department officials at OSTI weren't impressed by that reasoning and refused to release the list. Shea then appealed their denial to DOE's Office of Hearings and Appeals. To DOE's chagrin, the hearings officer ruled in favor of Shea. DOE asked the hearings officer to reexamine his ruling, and again he found in favor of Shea. In January, 1988, he concluded:

" to the extent that OSTI maintains records in a database and already has software that is capable of searching the database, the FOIA requires OSTI to use that software to search the database for the requested records. This is true even if the type of search that must be performed is different from the type normally performed by OSTI. A search of this nature is not, in substance, significantly different from a search of a file cabinet for paper records that are responsive to a request. If the FOIA required anything less it would allow agencies to conceal information from public scrutiny by placing it in a computerized form. This would be inconsistent with the FOIA's policy of the fullest possible disclosure."

Shea says the impact of this ruling is twofold. At least for DOE, and other agencies using this decision as a precedent, computer manipulation of data is not creation of a new document. Also, the demand that a reasonable search be conducted in response to an FOIA request may now require computer manipulation or programming.

Shea warns, however, that the DOE ruling is just the action of one federal agency. The DOE ruling, for instance, didn't set policy for OSHA. That agency never admitted it had been in error in its dealing with Public Citizen, Goldman said. The agency released the information Public Citizen requested only after upgrading its computers -a move OSHA said now allowed it to respond to the request. Until the Public Citizen case, Goldman said OSHA had "a policy of attempting to turn its computer system into a black hole for information that would otherwise be accessible under the FOIA."

Goldman praised the Department of Energy opinion. "Programming can take a minute and something that might not require programming could take seven days. It seems to me that whether there's programming isn't the point. It's got to) be whether it's a reasonable thing to do," she said.

But this is not a universally held opinion. In the 1986 case of Kele v. U.S. Parole Commission, a requester sought information on murderers receiving early parole. Acknowledging the information could only be compiled through new computer programming, the requester demonstrated that what was at issue was typing a few commands on a computer keyboard. The case of the action failed to impress the U.S. District Court for the District of Columbia, which ruled the Parole Commission didn't have to produce the information. "To hold otherwise," the court concluded, "by requiring agencies to write computer programs not needed for carrying out agency functions in response to FOIA requests would transform the government into a giant computer research firm captive to the whims of individual requesters at a great public expense."

The Department of Defense also has weighed in against requiring programming to assist FOIA requests. Current DOD rules say that unless a printout already exists for information within a DOD computer, it need not be collected or released. In its 1988 report, the Office of Technology Assessment warned that "taken to its extreme, this regulation could he interpreted to mean that pushing a button to print a document would constitute new programming."

What Form Information?

If the Department of Energy’s new policy prevails and computerized information is to be routinely released, should that information be released as a paper printout or in some electronic form, say on a CD or a floppy disk?

Some information is easier to use in computerized form. Computerized census data lends itself to numerous uses. Providing reporters with reams of raw census data in paper, hardcopy format could ensure no news story based on the data was ever written. Compiling statistics would simply take too long. Yet this type of action, even if a clever form of concealment, may be legal. Said the District of Columbia District Court in a 1984 ruling, "an agency has no obligation under FOIA to accommodate a particular requester's preference regarding the format "

Office Of Management And Budget

Some controversial guidance on setting policy has come from the Office of Management and Budget. Under the Paperwork Reduction Act of 1980, OMB’s Office of Information and Regulatory Affairs, was intended to regulate information policy in the federal executive branch. OMB has been accused, however, of being concerned largely with economic aspects of information policy and ignoring how economic considerations can affect citizen access to information.

OMB Watch, a private organization that monitors the agency's policies, recently summarized its opinion of how OMB has used its authority under the Paperwork Reduction Act, concluding:

"OMB has been criticized by Congress, the press and the public for using its paperwork powers not only to reduce government red tape, but also as a 'backdoor' to achieve ideological goals. OMB has forced agencies to compromise research, suppressed the collection of politically sensitive information, singled out several substantive areas for attack, and generally operated in secret."

OMB also has supported privatization of government information, a policy of turning government information over to private companies for resale at a profit to the public. Privatization, OMB argues, saves the government money. But it also means information once provided free can now be obtained only for a fee.

In 1985, the OMB Office of Information and Regulatory Affairs published Circular A-130, providing guidelines for federal information policy. That circular urges agencies to replace paper records with computer systems. The circular states, "Where the information is already substantially available in printed form, agencies may consider dissemination in electronic form to be a service of special benefit thc cost of which should be recovered through user charges." (Emphasis added).

Jerry Berman, an attorney with the American Civil Liberties Union and author of a recent Study on computers and government secrecy, argues that A-130 "may create price barriers that make electronic data systems unaffordable and inaccessible to most citizens."

Congress

Almost by default, the Office of Management and Budget OMB remains a lead agency in setting information policy. Congress largely has ignored the issues presented by A-130 and the arrival of electronic government. Hearings in 1985 addressed some of these problems, but congressional action has been limited.

The spate of recent reports and studies on these items may prompt congressional hearings. But OTA's 1988 report gently suggests why Congress has so far allowed OMB to set policy, concluding there is "a lack of technological literacy" among policymakers.

A congressional staffer familiar with these subjects put it more bluntly. "Congress hasn't acted yet because there aren't a dozen computer-literate members of Congress and they won't hold hearings on something they don't understand."

If Congress waits too long to consider these issues, OMB policy by default will become government policy, the staffer warned. Congress then will find itself in the difficult position of challenging rules and procedures that have been in place for years.

It is a race to set policy, but so far only OMB realizes the race has begun, said Relyea, of the Congressional Research Service.

Solutions

Where do we go from here?

Most of the recent reports, and many familiar with the issues, initially suggest taking stock of where we are. This is a three-step process involving understanding what is occurring, assessing how far the federal government has already moved into the electronic age, and holding private conferences and congressional hearings to publicize these changes.

First must come realization that more is involved than just the speed and efficiency with which an agency collects and disseminates information, or determining who will pay for these changes. The arrival of electronic government is altering the relationship between government and the governed.

This change is most vividly seen in EPA's toxics database. Access to the database means citizens will be analyzing and monitoring the environmental information available to EPA. They will not be limited to potentially sanitized or politically influenced EPA interpretations of that information. As EPA's Shapiro notes, EPA will no longer be in control of what information is released or the format of that information. "You will get what we get," he said.

Providing access to raw government data also allows the monitoring of government conduct. What happens once government receives the information? Thus the potential of the database extends beyond the environment and the EPA. If it succeeds, it could become the prototype for computer-access programs within other government agencies.

Taking stock also requires assessing how far federal agencies have proceeded into the electronic age. Some new computer systems are well known, Relyea said, citing EDGAR and the EPA database. The Administrative Conference of the United States also has compiled a partial listing of systems now available in the federal government.

But no congressional committee has compiled a complete list of all electronic actions by federal agencies, or how access is affected by those actions, Relyea said. There is no central listing of government databases now available, what they contain or how they may be used. With such a list, some citizens may discover information they have purchased from private companies is available for free from the government.

In his recent study on computers in government, Berman suggests the federal government "be required to establish an electronic and hard copy index of all public databases which describes their contents, how they may be accessed, what they cost, and what user supports are available." The list should be updated annually and provided through the Government Printing Office, the Depository Library Program and the National Technical Information Service, he said.

Implications For Foia

Current court rulings indicate that computerized government information is probably covered by FOIA, but an unequivocal statement by Congress of this fact is needed. As recently as May, 1988, when their own appeals office ruled against them, the Department of Energy was arguing that the public had no right to information entered in DOE computers, Shea said.

This also means a specific rejection by Congress of the argument that routine computer programming constitutes creation of a new record and provides grounds for denying a FOIA request, said Fred Wood, director of the OTA project that produced the agency's 1988 report. There may be cases where requested programming is excessive and burdensome, he said. But the mere fact that programming is involved should not be the deciding factor in whether a FOIA request is granted, he said.

Wood added that he is among those impressed with the language in the final ruling in Shea's DOE Oak Ridge case. Rejecting the programming-no programming distinction also suggests agencies must make a reasonable attempt to respond to an FOIA request, he said. It implies that reasonableness must be measured at least in part by effort, as proposed in OTA's report. That conclusion has also been adopted by the Administrative Conference in its recommendations on "Federal Agency Use of Computers in Acquiring and Releasing Information," said David Pritzker, an official with the conference.

Both Wood and Pritzker said they were aware of cases where agencies have spent hours responding to FOIA requests for paper documents. With that in mind, it doesn't seem reasonable for agencies now to say that computer programming amounting to perhaps minutes of effort is burdensome and therefore not required in responding to an FOIA request, they said. Both the OTA report and the Administrative Conference recommendations reject the idea that the format in which information is stored somehow changes the definition of a reasonable search.

OTA's Grodsky proposes a four-tiered plan based largely on effort and cost to assess whether a computer search is reasonable. At one end of the scale would be a request satisfied by printing information already collected and stored in an agency's databanks. "Essentially that would be pushing a print button," she said. The other extreme would be a request requiring creation of a new computer program involving extensive effort and programmer time.

OTA's report also suggests FOIA must increasingly be seen as an access to information, not an access to paper records law. Amendments may be needed to emphasize that FOIA was enacted to ensure the release of information, not just the release of information that happens to be in paper documents.

Federal agencies also disagree over the form in which information should be released in response to FOIA requests. Does a paper printout of a computer program constitute release? Many agencies insist it does, even if such a release creates new and significant problems.

Public Citizen, for instance, recently returned to OSHA with new requests for data. "They gave it to us in a computer printout that stood about three-feet high, and it was just too bulky and cumbersome to analyze," Goldman said. "We're suing now to get their computer tapes or we probably can't use the information."

Relyea suggested an initial guideline for this type of problem, proposing that "if the information is regularly used in the agency in electronic format, then the requester is probably entitled to have it in the same format if he so desires." The information should be released in an electronic format if it wouldn't unduly burden the agency to do so, and would unduly burden the requester to receive the information in paper format, Relyea said.

In a report prepared for the Administrative Conference, Villanova University Law Professor Henry H. Perritt suggests that guidelines for determining the form in which information is to be released should also be compared to past government information policies. Some information has in the past been disclosed only when a request has been received. The government distributes other information in a limited way by making it available in public reading rooms. Again, the burden is on the requester to seek out the information.

A third category of information actually is promoted by the government -published, advertised and distributed as federally produced books, documents, reports and films.

In its final recommendations, the Administrative Conference suggests that federal agencies responding to FOIA requests "should provide electronic information in the form in which it is maintained, or if so requested, in such other form as can be generated directly and with reasonable effort from existing databases with existing software."

The government's new technology can be confusing to the layman making an FOIA request. This confusion suggests that federal FOIA officers who have mastered the computerized systems should be required to assist in drafting requests. Agencies could also train FOIA requesters to conduct their own searches in open, unclassified records. Especially in the case of frequent requesters, such as public interest groups, these self searches -perhaps modeled after the EPA's database experience -could save the government time, money and effort.

Berman adds that to further reduce citizen confusion with the new technologies, Congress should declare that new database systems containing public information, "must be programmed to insure that the information is accessible pursuant to the FOIA." Agency computers without this capability should have it added when they are upgraded, he said.

One congressional staffer suggested that until such help is mandatory, FOIA requesters should automatically ask for assistance and consider its denial to be arbitrary and capricious activity, to be mentioned in later legal action.

Who Will Pay

The OTA report underscores a central problem of electronic government: Who will pay for all this? If government information is increasingly available in computerized form, but this computerized data must be purchased from the government or a corporation, then one answer is clear. Government information in an electronic form, which will increasingly be its most valuable version, will be available only to those able to pay.

Computers provide vast opportunities for expanding access to government information. But the move towards private purchase of government information is troubling.

"There has been a recent trend toward foreign-owned enterprises buying American publishing companies," Eileen D. Cooke, director of the American Library Association's Washington office, said, of a proposed Commerce Department information program. "Does the Commerce Department, of all government agencies, want its data published by a foreign-owned conglomerate?"

Cooke warned that Commerce was proposing "the imposition of high, profit-motivated fees for access to information created or collected at taxpayer expense. Will a particular title continue to be published if it does not show a profit?"

The private sector is under no obligation to make government information available at prices individuals and non-profit organizations can afford, she said. "A gap based on ability to pay between information 'haves' and 'have-nots' can easily evolve."

In a cost-conscious era, new government expenses cannot be ignored. But should these costs now be seen as more important than the information they support? A number of groups studying this issue suggest that the major error of the Office of Management and Budget is emphasizing money while largely ignoring the centuries-old policy of governmental support for information distribution.

This point was raised in 1987 by a task force of the Association of Research Libraries. The Task Force on Government Information in Electronic Format warned that: " serious restrictions on access to information (could develop) if the technology, or any particular medium, is allowed to dictate policy."

Grodsky is among those stressing that with privatization, the public pays more than once for the same information. Taxes pay for installing computers. Taxes pay for government to use those computers in collecting and developing information. But when citizens then want that information, they must purchase it from a private company, paying yet a third time.

The initial concern, Berman said, should not be the money for distribution information, but whether citizens have fair access to that information.

Grodsky also noted that computerization which has as its central purpose allowing an agency to better fulfill its mission should be funded by the federal government, not end users.

OTA suggests the initial focus of the funding debate be on the effort and expense of producing and distributing information. No more than limited and routine fees should be charged for information easily accessible in agency computers. Consideration of fees should increase as the difficulty and cost of obtaining electronic information increases.

Recent congressional amendments to the Freedom of Information Act also provide guidance for figuring costs in the computer era. In 1986, Congress decided that fees should be based on the requester's identity and ability to bear cost. Commercial requesters, defined as those involved in profit-making activities, must pay reasonable standard charges for copies, searches, and reviews. The news media, and educational or noncommercial institutions engaged in scholarly or scientific research, are exempt from search and review costs, and receive the first 100 pages of released records free. All other requesters may be charged reasonable standard charges for copies and searches, but cannot be charged review fees.

Providing computer systems without guidance leaves government agencies free to determine how and if computerized information will be collected, stored and released.

History suggests that maximum disclosure is seldom the guiding rule for bureaucracies. There is little to suggest that computerizing the American bureaucracy will change its inclination toward secrecy. In a memorable essay written decades before the Freedom of Information Act, sociologist Max Weber warned that secrecy is an occupational disease endemic to bureaucracy. Government employees as a rule distrust outsiders who might question the values or even the existence of the bureaucracy, Weber said. Secrecy becomes a shield against outside interference. In the age of electronic government this bureaucratic shield has returned in the even-more formidable form of a computer.

The Fund for Investigative Journalism helped support the preparation of this article.